Concrete Const. Co. v. City of Atlanta, s. 70344

• Decision Date: 18 October 1985
• Docket Number: Nos. 70344,70345,s. 70344
• Citation: 339 S.E.2d 266,176 Ga.App. 873
• Parties: CONCRETE CONSTRUCTION COMPANY v. CITY OF ATLANTA. ATLANTA GAS LIGHT COMPANY v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

Page 266

339 S.E.2d 266

176 Ga.App. 873

CONCRETE CONSTRUCTION COMPANY v. CITY OF ATLANTA.

ATLANTA GAS LIGHT COMPANY v. CITY OF ATLANTA.

Nos. 70344, 70345.

Court of Appeals of Georgia.

Decided Oct. 18, 1985.

Rehearing Denied Nov. 20, 1985.

Certiorari Denied Jan. 8, 1986.

Steven J. Kyle, Atlanta, for appellant (case no. 70344).

Alan F. Herman, Julia B. Jagger, Hugh E. Wright, Atlanta, for appellant (case no. 70345).

Benjamin S. Williams, K. Marc Barre, Jr., Atlanta, for appellee.

SOGNIER, Judge.

The City of Atlanta brought suit against Atlanta Gas Light Company (AGL), Concrete Construction Company (CCC) and Georgia Power Company for damages arising from a gas explosion on January 8, 1973, at the City's facility at Northside Pumping Station. A jury trial was held and a verdict was returned in favor of Georgia Power, but against AGL in the amount of $300,358.59 compensatory damages and $901,075.79 punitive damages and against CCC in the amount of $128,725.71 compensatory damages and $386,173.31 punitive damages. The appeals of AGL and CCC are consolidated in this opinion.

The facts of this case, which are basically undisputed, have been set forth in detail in Atlanta Gas Light Co. v. City of Atlanta, 160 Ga.App. 396, 287 S.E.2d 229 (1981). For the purpose of these appeals, it suffices to outline that the explosion at appellee's facility occurred during a severe ice storm in which approximately 20,000 volts of electricity, discharged through an underground electrical conduit, came into contact with an underground gas line, installed by appellant AGL through its contractor, appellant CCC. The electric current arced from the conduit to the gas line, melting both pipes at the point of contact and thus allowing natural gas to flow into appellee's facility through the conduit where the gas accumulated and finally exploded.

1. AGL contends the trial court erred by denying its motion for directed verdict and overruling its motion for judgment notwithstanding the verdict and new trial on the issue of the relationship between AGL and CCC. AGL asserts that the evidence showed as a matter of law that the relationship between it and CCC was that of principal and independent contractor rather than principal and agent. AGL earlier moved for summary judgment on this issue and this court affirmed the trial court's denial of that motion in Atlanta Gas Light, supra at 399(2), 287 S.E.2d 229, on the basis that as a matter of law the evidence did not support a finding that CCC was functioning as an independent contractor rather than as a servant of AGL. Id. We find that the evidence before the trial court in Atlanta Gas Light, supra, on motion for summary judgment was presented to the jury by appellee along with other evidence during the trial of this case. There being some evidence to uphold the jury's verdict, the trial court did not err by denying AGL's motions. See Lindsey v. Heard Oil Co., 170 Ga.App. 572, 573(1), 317 S.E.2d 597 (1984).

2. AGL and CCC contend the trial court erred by denying their motions for directed verdict, and AGL's motions for judgment notwithstanding the verdict and new trial, on the issue of negligence. "We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. [Cit.] Where the testimony of the plaintiff and the defendant is in conflict, the jury is the final arbiter [cit.], and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.]" Ackerman etc. Realty Co. v. Coppedge, 155 Ga.App. 903, 907-908(3), 273 S.E.2d 645 (1980). Appellee introduced evidence that appellants had been made aware of the location of the electrical conduit before the gas line was installed, that appellants knew at least six inches of separation between pipes was necessary as a matter of good engineering practice but that nevertheless the gas line was installed by CCC under AGL's supervision in hazardously close proximity to the electrical conduit. Thus, the jury had evidence before it from which it could have determined that appellants acted negligently in selecting the location of the gas line and in installing the gas line. " 'Although the evidence was conflicting, after verdict, the evidence is to be construed to uphold rather than to upset the verdict, when that can be reasonably done.' [Cit.] There was ample evidence of record to support the finding of the jury. Consequently, the trial court did not err in overruling appellant[s'] motions for directed verdict, judgment notwithstanding the verdict and new trial. [Cits.]" Florida Tractor Corp. v. Miller, 156 Ga.App. 494, 495-496(1), 274 S.E.2d 836 (1980).

3. AGL and CCC contend the trial court erred by denying their motions for directed verdict and submitting to the jury the issue of punitive damages. Additional, or exemplary damages may be recovered under OCGA § 51-12-5 "[i]n a tort action in which there are aggravating circumstances, in either the act or the intention." "To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights." Gilman Paper Co. v. James, 235 Ga. 348, 351, 219 S.E.2d 447 (1975). There was evidence that appellants knew from earlier episodes of electrical arcing that it was not good practice to place an electrical conduit and a gas line in contact with one another and that electrical arcing posed danger to the public. Yet photographs taken after the explosion show the gas line and the electrical conduit were in contact with one another: testimony was elicited from both appellants' witnesses that due to the nature of the soil in which the gas line was laid, it was almost "guaranteed" no settlement of the pipe would occur after installation. Because there was evidence that the gas line was installed by CCC under AGL's supervision, there was ample support for a conclusion by the jury that appellants laid the gas line in contact with the electrical conduit, knew of that contact and of the potentially hazardous situation that contact posed, and yet did nothing to rectify the situation. The trial court did not err by denying appellants' motions for directed verdict and submitting the issue of punitive damages to the jury.

4. (a) AGL and CCC contend the trial court erred by failing to charge the jury on act of God and legal accident because those defenses were raised by the evidence of the severe ice storm of January 8, 1973. Act of God means "a casualty which is not only not due to human agency, but is one which is in no wise contributed to by human agency, and that an act which may be prevented by the exercise of ordinary care is not an act of God." Central Ga. etc. Corp. v. Heath, 60 Ga.App. 649, 652, 4 S.E.2d 700 (1939). The defense of legal accident is confined to occurrences which take place in the absence of negligence and for which no one would be liable. Chadwick v. Miller, 169 Ga.App. 338, 344(1), 312 S.E.2d 835 (1983). "A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. [Cit.]" Keno v. Alside, Inc., 148 Ga.App. 549, 553-554(5), 251 S.E.2d 793 (1978). Since the evidence is undisputed that human agency intervened to lay the gas line and electrical conduit through which the natural gas flowed with the end result of the explosion at appellee's facility and since there was evidence of negligence, the trial court did not err by refusing to charge the jury on these issues.

(b) AGL contends the trial court erred by inadequately charging the jury on foreseeability. AGL argues that the trial court's charge failed to instruct the jury that a defendant is not bound to foresee or anticipate unusual or exceptional occurrences and that the charge failed to contain a warning that hindsight is not the proper way to determine foreseeability. The trial court charged the jury that the defendants could be held liable only for the natural and probable consequences of acts which reasonably could have been foreseen "as the natural, reasonable, and probable consequences of the original negligent act." Although the trial court did not specifically charge the jury on 'hindsight,' the charge as a whole properly emphasized to the jury that they should look to the circumstances existing at the time of the defendants' actions. "Assuming, without deciding, that [AGL's] requ...